Case: 17-11315
Date Filed: 07/26/2017
No. 17-11315 THE UNITED STATES COURT
APPEALS FOR THE ELEVENTH CIRCUIT
COMMON CAUSE, AL.,
Plaintiffs-Appellants,
BRIAN KEMP, Georgia Secretary State,
Defendant-Appellee. Appeal from the United States District Court
for the Northern District Georgia, Atlanta Division
Case No. 1:16-cv-00452-TCB
BRIEF AMICI CURIAE JUDICIAL WATCH, INC. AND ALLIED
EDUCATIONAL FOUNDATION SUPPORT APPELLEE AND
AFFIRMANCE
_____________________________________
Paul Orfanedes
JUDICIAL WATCH, INC.
425 Third Street
Suite 800
Washington, D.C. 20024
(202) 646-5172
Counsel for Amici Curiae
Date: July 26, 2017
Case: 17-11315
Case No. 17-11315
Date Filed: 07/26/2017
Common Cause Kemp
CERTIFICATE INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT
Pursuant Federal Rules Appellate Procedure 26.1(a) and 29(a)(4)(A)
and 11th Cir. 26.1-1(a), amici Judicial Watch, Inc. and Allied Educational
Foundation hereby submit they are registered 501(c)(3) educational non-profit
organizations, that they are private non-publicly held corporations, and that they
have parent corporations. publicly held corporation parent corporation
owns ten percent (10%) more amici stock. Amici further certify that,
addition the persons and entities identified the brief Plaintiffs-Appellants
Common Cause and the Georgia State Conference the NAACP filed June
2017, the following persons may have interest the outcome this case:
Allied Educational Foundation (amicus curiae)
Judicial Watch, Inc. (amicus curiae)
Orfanedes, Paul (counsel for amici curiae)
Dated: July 26, 2017
Respectfully submitted, Paul Orfanedes
Paul Orfanedes
JUDICIAL WATCH, INC.
425 Third Street
Suite 800
Washington, D.C. 2002
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Date Filed: 07/26/2017
TABLE CONTENTS
CERTIFICATE INTERESTED PERSONS AND CORPORATE
DISCLOSURE STATEMENT ....................................................................
TABLE AUTHORITIES ....................................................................................
IDENTITY, INTERESTS, AND AUTHORITY AMICI CURIAE ....................
STATEMENT THE ISSUE .................................................................................
SUMMARY THE ARGUMENT ........................................................................
ARGUMENT AND CITATIONS AUTHORITY ..............................................
The Structure and Text the NVRA Establish that Does Not Restrict the
Bases States May Use Trigger the Sending Confirmation Notices ........
II.
The NVRA Does Not Conflict with Georgia Approach List
Maintenance, and, Fact, Authorizes Programs Like ................................ Georgia Election Law Does Not Remove Voters for Failing Vote The NVRA Anticipates and Permits Voter List Maintenance Programs
Like Georgia ..........................................................................................
III.
The Legislative History the NVRA, the Federal Government
Enforcement It, and the Implementation the NVRA the States All
Confirm That Failure Vote for Period Time Can Used
Trigger for Sending Confirmation Notices ...................................................
CONCLUSION ........................................................................................................
CERTIFICATE COMPLIANCE .......................................................................
CERTIFICATE SERVICE ................................................................................
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Date Filed: 07/26/2017
TABLE AUTHORITIES
CASES
PAGE Philip Randolph Inst. Husted,
838 F.3d 699 (6th Cir. 2016), cert. granted,
Husted Philip Randolph Institute,
137 Ct. 2188 (2017)...............................................................................
Alberts Royal Caribbean Cruises, Ltd.,
834 F.3d 1202 (11th Cir. 2016) .....................................................................
Common Cause Kemp,
2017 U.S. Dist. Lexis 93417 (N.D. Ga. 2017) ..............................8, 11, 15,
Dolan U.S. Postal Serv., 546 U.S. 481 (2006).....................................................
Great Lakes Reinsurance (UK) PLC TLU Ltd.,
298 App 813 (11th Cir. 2008) ................................................................
Judicial Watch Husted,
Civil Action No. 12-792 (S.D. Ohio 2012) .....................................................
Judicial Watch, Inc. King, 993 Supp. 919 (S.D. Ind. 2012) .........................
Koons Buick Pontiac GMC, Inc. Nigh, 543 U.S. (2004) ................................
Pac. Operators Offshore, LLP Valladolid, 565 U.S. 207 (2012) ........................
Wachovia Bank, N.A. United States,
455 F.3d 1261 (11th Cir. 2006) .....................................................................
United States Velez, 586 F.3d 875 (11th Cir. 2009) ............................................
United States City Philadelphia, al.,
Civil Action No. 06-4592 (E.D. Penn. 2007) ................................................
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Date Filed: 07/26/2017
United States Missouri,
2007 U.S. Dist. Lexis 27640 (W.D. Mo. 2007),
aff part, rev part other grds.,
535 F.3d 844 (8th Cir. 2008) ...........................................................................
Young United Parcel Service, 135 Ct. 1338 (2015) ........................................
FEDERAL STATUTES U.S.C. 20501(b)(3) ......................................................................................6, U.S.C. 20501(b)(4) ............................................................................................ U.S.C. 20507(a)(4) ....................................................................................passim U.S.C. 20507(b)(1) ............................................................................................ U.S.C. 20507(b)(2) ..........................................................................7, 10, 13, U.S.C. 20507(c)(1) .....................................................................8, 14, 15, 16, U.S.C. 20507(d)(1) ...................................................................................... U.S.C. 20507(d)(2) ..........................................................................................
STATE STATUTES
ALASKA STAT. ANN. 15.07.130(a)(3) ....................................................................
ALASKA STAT. ANN. 15.07.195 .............................................................................
ALA. CODE 17-4-9 .................................................................................................
ALA. CODE 17-4-38.1 ............................................................................................
CONN. GEN. STAT. ANN. 9-19k .............................................................................
FLA. STAT. ANN. 98.065(2)(c) ...............................................................................22
GA. CODE ANN. 21-2-234............................................................................9, 10,
GA. CODE ANN. 21-2-235(b) ...................................................................................
HAW. REV. STAT. 11-17(a) ....................................................................................22
iii
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Date Filed: 07/26/2017 ILL. COMP. STAT. ANN. 5/4-17 ............................................................................ ILL. COMP. STAT. ANN. 5/1A-45 ..........................................................................
IND. CODE ANN. 3-7-38.2-5 ...................................................................................
IOWA CODE 48A.28(2)(b)......................................................................................
LA. STAT. ANN. 18:18 ............................................................................................
MD. CODE ANN., ELEC. LAW 3-101 .......................................................................
MASS. GEN. LAWS ANN. ch. 51, 37A ....................................................................
MICH. COMP. LAWS ANN. 168.509r(6) ..................................................................22
MO. REV. STAT. 115.181(2) ..................................................................................
MONT. CODE ANN. 13-2-220(1)(c)........................................................................
NEV. REV. STAT. ANN. 293.675 .............................................................................
N.C. GEN. STAT. ANN. 163-82.14 ..........................................................................
OHIO REV. CODE ANN. 3503.15 .............................................................................
OKLA. STAT. ANN. TIT. 26, 4-120.2(A)(6) ............................................................23 PA. CONS. STAT. ANN. 1901(b)(3)....................................................................
R.I. GEN. LAWS 17-9.1-27(b) ................................................................................
R.I. GEN. LAWS ANN. 17-9.1-34 ............................................................................
S.C. CODE ANN. 7-5-186 .......................................................................................
TENN. CODE ANN. 2-2-106(c) ...............................................................................23
TENN. CODE ANN. 2-2-140 ....................................................................................
UTAH CODE ANN. 20A-2-109 ................................................................................
UTAH CODE ANN. 20A-2-304.5(3)(a) ...................................................................
VT. STAT. ANN. tit. 17, 2150(d)(2)-(3) ..................................................................23
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VA. CODE ANN. 3-2-25(j) ......................................................................................
VA. CODE ANN. 24.2-404 ......................................................................................
WASH. REV. CODE ANN. 29A.08.125 .................................................................... VA. CODE ANN. 3-2-4a .....................................................................................
FEDERAL RULES
FED. APP. 29(a) ..................................................................................................
OTHER AUTHORITIES
ANTONIN SCALIA BRYAN GARNER,
READING LAW: THE INTERPRETATION LEGAL TEXTS (2012) ....................
H.R. Rep. No. 103-9, 103rd Cong., 1st Sess. (1993) .................................................
Press Release,
Judicial Watch Warns States Clean Voter Registration Lists Face
Federal Lawsuit, April 11, 2017, http://goo.gl/KLBN0a ................................ Rep. 103-6, 103rd Cong., 1st Sess. (1993) .......................................................
Voter List Accuracy,
National Conference State Legislatures (June 16, 2016),
https://goo.gl/ihYHSA ...................................................................................
Case: 17-11315
Date Filed: 07/26/2017
IDENTITY, INTERESTS, AND AUTHORITY AMICI CURIAE1
Allied Educational Foundation and Judicial Watch, Inc. (collectively
amici file this amici curiae brief pursuant FED. APP. 29(a)(2) support Appellee Brian Kemp, Georgia Secretary State, and urge this Court affirm
the judgment the district court. Amici have received prior consent from all
parties the filing this brief.
Judicial Watch non-partisan, 501(c)(3) non-profit educational
foundation that seeks promote transparency, integrity, and accountability
government and fidelity the rule law. furtherance these goals, Judicial
Watch committed the proper interpretation and implementation Section the National Voter Registration Act 1993 NVRA Judicial Watch
regularly files amicus curiae briefs and lawsuits related its enforcement. See,
e.g., Judicial Watch, Inc. King, 993 Supp. 919 (S.D. Ind. 2012) (NVRA
Section lawsuit against the State Indiana). Just this year, Judicial Watch
notified eleven states, including Georgia, that certain counties had more registered
voters than age-eligible citizens, and that this indicated failure comply with the
Pursuant FED. APP. 29(a)(4)(E), party counsel authored the brief whole part; party party counsel contributed money that was
intended fund preparing submitting the brief; and person other than the
amici curiae their counsel contributed money that was intended fund
preparing submitting the brief.
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Date Filed: 07/26/2017
NVRA. See Press Release, Judicial Watch Warns States Clean Voter
Registration Lists Face Federal Lawsuit, April 11, 2017, http://goo.gl/KLBN0a.
Judicial Watch has particular interest the legal issue presented this
case. 2012, Judicial Watch filed NVRA Section lawsuit against Ohio.
Judicial Watch Husted, Civil Action No. 12-792 (S.D. Ohio 2012). The lawsuit
was settled, and Ohio agreed perform certain list maintenance practices,
including the mailing address confirmation notices voters who have had
contact with Ohio election offices for two years. subsequent lawsuit was filed
challenging that procedure the same basis the challenge made this case,
namely, that voters were being removed from the rolls for failing vote. Judicial
Watch filed several amicus briefs that case. The Supreme Court recently agreed hear the appeal that case. Philip Randolph Institute Husted, 838 F.3d
699 (6th Cir. 2016), cert. granted, Husted Philip Randolph Institute, 137
Ct. 2188 (2017).
Allied Educational Foundation AEF non-partisan, 501(c)(3) nonprofit charitable and educational foundation based Englewood, New Jersey.
Founded 1964, AEF empowers Americans through education and legal action,
sponsoring nationwide seminars and online courses topics such civil liberties,
transparency government, and electoral integrity. AEF regularly files amicus
curiae briefs means advance its purpose and has appeared numerous times
Case: 17-11315
Date Filed: 07/26/2017 amicus curiae U.S. courts appeal and the U.S. Supreme Court support
electoral integrity laws.
Together, amici share interest the integrity the electoral process with
the State and the people Georgia. Amici have extensive knowledge the
statutory and constitutional questions involved. Amici believe, moreover, that the
District Court determination was correct, that relying the fact that voter
has not voted for three years valid reason send address inquiry letter
that voter, and that this consistent with the plain language and congressional
intent the NVRA. Amici urge this Court affirm the decision below and
dismiss Appellants claims.
STATEMENT THE ISSUE
The NVRA and the Help America Vote Act 2002 (HAVA) forbid states cancel voter registration reason [a] person failure vote, but allow
such cancellation voter fails respond address confirmation notice and
fails engage voting-related activity for two consecutive general federal
elections. Pursuant state law, Georgia sends confirmation notices registered
voters who have not engaged voting-related activity for three years. voters (1) not respond that notice, and (2) not vote, reregister, contact election
officials during the NVRA waiting period, their registrations are cancelled. Does
Georgia procedure remove voters from the rolls for failing vote?
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SUMMARY THE ARGUMENT
The National Voter Registration Act 1993 consciously left the states
the choice general program that makes reasonable effort comply with
the voter list maintenance requirements the statute. sure, the NVRA
specifies minimum standards for all such programs. requires that such programs uniform, nondiscriminatory, and comply with the Voting Rights Act, and that voter may removed from the rolls for failing vote. The NVRA further
mandates that removal from the rolls because change residence shall
occur until notice requesting address confirmation sent the old address, and response received, and, during waiting period that includes the next two
general federal elections, the voter does not vote communicate with election
authorities. also provides example acceptable program based
change-of-address information from the Post Office, the so-called Safe Harbor
program. Beyond that, however, the NVRA says nothing about what such
general program must contain. particular, places restrictions the events
states may rely deciding whether send confirmation notices voters.
The Georgia law challenged this case simply requires that state officials
send NVRA confirmation notice any voter who has had voting-related
activity for three years. such voter responds the notice, that the end the
matter, and the registration left untouched. the voter does not respond, then
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that commences the NVRA statutory waiting period. Any voting-related activity communication during that waiting period stops the process, and the registration restored. If, however, there such activity, then the registration may
cancelled which will five seven years after the process started.
All this perfect accord with the NVRA. Voters are not removed for
failing vote, Appellants maintain. Rather, they are removed for failing
respond notice and then failing engage voting activity for two federal
elections. Appellants attempt stretch the notion causation beyond its natural
bounds refer equally all prior events chain events not warranted
logic the law.
The propriety Georgia approach confirmed the 2002 amendment
the NVRA, which expressly exempted the notice and waiting period from the
restriction removing voters for failing vote. That amendment embodied the
view that there crucial difference between sending voters letters and waiting
for few more years hear from them, which what Georgia does, and removing
voters for failing vote, which what the NVRA forbids. Appellants, however,
seek draw from this amendment the exact opposite its plain meaning. They
rely almost entirely the fact that the 2002 amendment refers both Section 8(c)
(containing the Safe Harbor provision) and Section 8(d) (requiring the notice
and waiting period). They conclude from this conjunction that states are only
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covered the exemption contained the 2002 amendment when they
simultaneously engage both programs.
Appellants argument simply ignores the text Sections 8(c) and (d).
Consulting that text, are constrained basic principles statutory
interpretation, becomes clear that the Safe Harbor provision not mandatory,
but permissive, and that states are not required utilize it. The notice-and-waiting
period provision, contrast, standalone, mandatory provision. Taking
Appellants contrary arguments face value, moreover, would lead the absurd
(and counter-textual) conclusion that the Safe Harbor provision the only program
permitted the NVRA.
Finally, amici note that Congress, the Justice Department, and nineteen
states all have assumed that using the failure vote basis for sending
confirmation notices fully consistent with the NVRA.
ARGUMENT AND CITATIONS AUTHORITY
The Structure and Text the NVRA Establish that Does Not
Restrict the Bases States May Use Trigger the Sending
Confirmation Notices.
Section the integrity provision the NVRA, requires states maintain
accurate voter rolls. U.S.C. 20507; see U.S.C. 20501(b)(3) and (4)
(NVRA stated purposes include protect[ing] the integrity the electoral
process and ensur[ing] that accurate and current voter rolls are maintained.
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Rep. 103-6 17-18, 103rd Cong., 1st Sess. (1993) (extolling accurate and up-todate voter registration lists
The core requirement Section the mandate that each State shall
conduct general program that makes reasonable effort remove the names
ineligible voters from the official lists eligible voters. Id., 20507(a)(4). This
mandate does not list the particular steps that general program must
incorporate, specify how state should about complying. Rather, its plain
language, only requires that states undertake reasonable effort. States have
discretion try figure out how make that effort. See United States
Missouri, 2007 U.S. Dist. Lexis 27640 *19 (W.D. Mo. 2007), aff part, rev part other grds., 535 F.3d 844 (8th Cir. 2008) The NVRA does not define
reasonable effort and the Court has found authority that describes the
parameter the terms.
While does not prescribe any particular measures states must adopt,
Section does establish certain baseline requirements. Any state program
remove invalid registrations must uniform, nondiscriminatory, and
compliance with the Voting Rights Act. U.S.C. 20507(b)(1). And state
program may remove person from the voter rolls reason the person
failure vote. Id., 20507(b)(2). 2002, that provision was modified add
that nothing this paragraph may construed prohibit State from using the
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procedures described subsections [8](c) and [8](d) remove ineligible voters
from the rolls. Id.
Recognizing that the NVRA short guidance how states may
comply, Congress included the Safe Harbor provisions Section 8(c). That
section allows states meet the reasonable effort requirement the NVRA
conducting list maintenance program based reviewing change-of-address
information supplied the Postal Service. U.S.C. 20507(c)(1)(A).
Section 8(d) provides that, unless they confirm writing that they have
moved, registrants may not removed from the rolls unless (1) they are mailed,
and fail respond to, statutory notice requesting address confirmation, and (2)
they then not vote contact the state about voting during time period
including the next two general federal elections. Id., 20507(d)(1), (2).2 The
NVRA says nothing, however, about when states may send confirmation notices
voters. the District Court observed, [t]he NVRA silent when and how
state may decide send out the notifications. Other than the exemplar safe-harbor
provision, there explicit statutory language governing trigger provisions.
Common Cause Kemp, 2017 U.S. Dist. Lexis 93417 *10 (N.D. Ga. 2017).
The NVRA also provides for the cancellation registrations those who
have died, who are disqualified from voting because criminal conviction
mental incapacity, who have notified state that they have moved elsewhere.
See U.S.C. 20507(a)(3). Those provisions are not issue here.
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Accordingly, the NVRA would not prevent Georgia from sending
confirmation notices every year every registrant the State, although this
undoubtedly would quite expensive. Nor would prohibit Georgia from
sending confirmation notices uniform and nondiscriminatory basis any
meaningful subset the foregoing, for example, residents who have ceased
filing state tax returns, who not respond jury notices, which may indicate
that they have moved. the same vein, nothing the NVRA prohibits Georgia from sending
confirmation notice all registered voters who have not engaged any votingrelated activity for given period.
II.
The NVRA Does Not Conflict with Georgia Approach List
Maintenance, and, Fact, Authorizes Programs Like It.
Georgia law provides that, every other year, notice requesting address
confirmation shall sent forwardable, first-class mail registered voters
whose names appear the list electors with whom there has been contact
during the preceding three calendar years. GA. CODE ANN. 21-2-234(a)(2).
there response that notice within thirty days, the registration designated inactive. Id., 21-2-234(g). there further contact from the voter during period encompassing the next two general federal elections, the registration
cancelled. GA. CODE ANN. 21-2-235(b).
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Appellants lawsuit premised the assertion that this sequence events
amounts removing voters for failing vote. They argue that Georgia law
violates the NVRA stipulation that state program shall not result the
removal the name any person from the official list voters registered vote election for Federal office reason the person failure vote.
U.S.C. 20507(b)(2).
Georgia Election Law Does Not Remove Voters for
Failing Vote.
Appellants argument fails for many reasons, but the most basic simply
this: the plain meaning the relevant Georgia law does not require anything
forbidden the plain meaning the NVRA. Appellants argument the
contrary badly misinterprets the ordinary language these statutes.
There dispute that the NVRA precludes the removal voters from the
rolls solely because they have failed vote. But the process embodied GA.
CODE ANN. 21-2-234 for inactivating and then cancelling ineligible registrations
does not remove anyone for not voting. The failure vote only triggers further,
written inquiry, directed the registrant. Whether the registration cancelled
depends entirely what happens after that. Thus, while voters are queried the
basis their failure vote, they are never removed from the rolls that ground. registration only cancelled when voter does not answer confirmation notice
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and does not vote, register, change addresses for two general federal elections. the District Court correctly concluded, Appellants argument
ignores the fact that voters are removed from the rolls only they fail respond the notification addition having contact with the
electoral process for seven years. Plaintiffs[-Appellants] would read
the NVRA prohibiting state from ever considering person
failure vote when removing ineligible voters, but Congress did not
write such prohibition into the law
Common Cause, 2017 U.S. Dist. Lexis 93417 *12.
Appellants maintain that, because the process followed under Georgia law
considers the failure vote, thus results the removal voters reason their failure vote. Appellants Br. 21. support this contention,
Appellants argue that the ordinary meaning the term result proceed
arise consequence, effect, conclusion. Id. 22, citing Philip Randolph
Inst. Husted, 838 F.3d 699 (6th Cir. 2016), cert. granted, Husted Philip
Randolph Institute, 137 Ct. 2188 (2017).
Appellants, other words, would define result strict, but-for causation,
however attenuated. That interpretation not consistent, however, with the usual
meaning that word. Alberts Royal Caribbean Cruises, Ltd., 834 F.3d 1202,
1204 (11th Cir. 2016) When interpreting statute, [w]ords are understood their ordinary, everyday meanings. citing ANTONIN SCALIA BRYAN
GARNER, READING LAW: THE INTERPRETATION LEGAL TEXTS (2012).
ordinary, everyday language, when said that one event results another, the
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Date Filed: 07/26/2017
first event typically the immediate cause the second that is, the nearest time, the last event chain events. put more concretely,
ordinarily would said that the failure vote for three years resulted
confirmation notice being sent under Georgia law. turn, the failure respond
that notice, along with the passage time through two general federal elections,
resulted the registration being cancelled. one everyday speech uses the
terms result cause consequence refer back indiscriminately and
equally all prior events, however remote, sequence events. Ordinary
speech limits the reference sense nearness.
Lawyers have word for this. The term proximate cause shorthand for concept: Injuries have countless causes, and not all should give rise legal
liability. Pac. Operators Offshore, LLP Valladolid, 565 U.S. 207, 223 (2012)
(Scalia, J., concurring judgment) (citation omitted). Life too short pursue
every event its most remote, but-for, consequences, and the doctrine
proximate cause provides rough guide for courts cutting off otherwise endless
chains cause-and-effect. Id. (citation omitted). Applying this principle here,
the proximate cause the removal voters under GA. CODE ANN. 21-2-234
their failure respond confirmation notice, along with the passage
statutory period time. Voters are not removed from the rolls for failing vote.
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The NVRA Anticipates and Permits Voter List
Maintenance Programs Like Georgia
The NVRA allows the use any trigger identify voters who may have
moved long those voters are sent, and fail respond to, confirmation
notice, and then not vote contact the state during the statutory waiting period.
This apparent from the entire structure the NVRA, which leaves states
define the general program that makes reasonable effort comply with the
statute. 52. U.S.C. 20507(a)(4). But this fact particularly confirmed the
2002 amendment the NVRA. That amendment qualified Section rule that
one may removed from the voter rolls reason the person failure
vote, adding: except that nothing this paragraph may construed
prohibit State from using the procedures described subsections (c) and (d)
remove voter from the rolls. U.S.C. 20507(b)(2).
This simple amendment makes clear that procedures that involve sending
Section 8(d) confirmation notices and then waiting for two general federal
elections are not proscribed Section 8(b)(2) restriction removals for failure vote. all parties agree, the amendment was intended resolve the apparent
tension the NVRA between its ban removals for failure vote and its
authorization removals following the statutory waiting period. Appellants Br.
34; Appellees Br. 24-25. stating that the ban did not apply Section 8(d)
notice and removal procedures, the amendment authorized state procedures, like
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Georgia that incorporate the notice and waiting period, and forecloses the very
arguments made Appellants this case.
Appellants, however, respond with argument that stands the statute its
head, ultimately reading ban the very thing was amended permit.
Appellants point out that the 2002 amendment excepts the procedures described subsections (c) and (d). U.S.C. 20507(b)(2). Appellants then argue that
the use the conjunction and this clause means that the 2002 amendment
applies only where both subsections are utilized that is, where change-ofaddress information supplied the Postal Service used identify those
whom confirmation notices are sent. See U.S.C. 20507(c)(1)(A); (d).
Appellants conclude that, [t]o exempt voter removal program from the Failureto-Vote Prohibition, state program must use both the USPS Safe Harbor
Procedure subsection 8(c) and the Address-Confirmation Procedure
subsection 8(d). Appellants Br. 32.
Appellants also cite Section 8(a)(4) the NVRA, which requires states
conduct general program that makes reasonable effort remove the names
ineligible voters who have changed residence accordance with subsections (b),
(c), and (d). U.S.C. 20507(a)(4)(B). They argue that, [b]ased the word
and, any removal voters must comply with all three subsections. Appellants
Br. 28. They suggest that, because Georgia only uses the Address-Confirmation
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Procedure Section 8(d), not excepted from, and invalid under, the
NVRA ban removing voters for failing vote. Appellants Br. 33.
The word and those two provisions the NVRA does not bear the
weight Appellants put it. They interpret the phrase (c) and (d) include the
implicit stipulation that (d) can never utilized without (c). But whether such inference warranted any particular case statutory interpretation depends the specific content the identified subsections. this case, Section 8(c) provides that, utilizing change-of-address
information provided the Post Office, state may meet the NVRA
requirement have reasonable, general program for removing ineligible voters. U.S.C. 20507(c)(1)(A) (emphasis added). its own terms, Section 8(c)
permissive, Appellants concede. Appellants Br. Subsection (c) states
its face that permissive safe harbor one way States may comply with the
NVRA); Common Cause, 2017 U.S. Dist. Lexis 93417 *10 The language the safe-harbor provision permissive, not exclusive, meaning states may
permissibly use other trigger methods. (citation omitted); see Great Lakes
Reinsurance (UK) PLC TLU Ltd., 298 App 813, 815 (11th Cir. 2008) use the permissive may indicates, the [statute] does not impose duty
(citations omitted). Section 8(c) also explicitly incorporates the notice and waiting
period Section 8(d), providing that registrar must use[] the notice procedure
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described subsection (d)(2) confirm the change address those who are
identified the Post Office having moved another jurisdiction. U.S.C.
20507(c)(1)(B)(ii).3
Section 8(d), contrast, mandatory, not permissive. provides that
State shall not remove the name registrant who believed have moved
unless the specific procedure set forth therein followed. U.S.C.
20507(d)(1) (emphasis added). Also way contrast, Section 8(d) does not
incorporate Section 8(c) indeed, makes reference to, mention of, the other
subsection.
Given the statutory text, the operation these two provisions clear.
state program remove ineligible voters from the rolls may comply with Section
8(c), but must comply with Section 8(d). Further, state utilizes Section 8(c),
must comply well with Section 8(d) notice and waiting period. But this
relationship between the subsections not reciprocal: nothing Section 8(d)
requires those who follow its provisions comply well with Section 8(c).
That cross-reference explains why the 2002 amendment did refer both
subsections (c) and (d). undisputed that the 2002 amendment was intended
resolve the tension between the NVRA restriction removals for failing vote the one hand, and its authorization removals after two general federal
elections the other. address this issue, the 2002 amendment had refer
both subsections 8(d) because contained the core provision defining the
notice and waiting period procedure, and 8(c) because expressly incorporated reference Section 8(d) procedure. U.S.C. 20507(c)(1)(B)(ii).
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Date Filed: 07/26/2017 Appellants version the NVRA, the explicit, plain text these two
sections simply disappears from view, and all decided the magic word and.
That the wrong way construe statute. Courts should avoid slicing single
word from sentence, mounting definitional slide, and putting under
microscope attempt discern the meaning entire statutory provision.
Wachovia Bank, N.A. United States, 455 F.3d 1261, 1267 (11th Cir. 2006)
(citation omitted). Rather, [s]tatutory construction holistic endeavor.
Koons Buick Pontiac GMC, Inc. Nigh, 543 U.S. 50, (2004) (citations
omitted); Dolan U.S. Postal Serv., 546 U.S. 481, 486 (2006) Interpretation
word phrase depends upon reading the whole statutory text, considering the
purpose and context the statute
The defect Appellants interpretation the NVRA readily established noting another problem with their argument, namely, that proves too much.
Consider that Section 8(a)(4) the NVRA requires states make reasonable
effort remove registrations that have become invalid reason change
the residence the registrant, accordance with subsections (b), (c), and (d).
U.S.C. 20507(a)(4)(B). According Appellants, the and that clause
requires that any removal voters must comply with all three subsections.
Appellants Br. 28. But this so, then the Safe Harbor provision Section 8(c) necessary part any program remove the registrations voters who have
Case: 17-11315
Date Filed: 07/26/2017
moved elsewhere. Because general program remove the registrations those
who have moved required the NVRA, then, the logic Appellants
argument, the use Section 8(c) always mandatory.
Such interpretation contrary the plain language the NVRA.
Section 8(c) uses the permissive word may, which means that not
mandatory. Further, Section 8(a)(4) requirement that states conduct general
program that makes reasonable effort would become superfluous the Safe
Harbor method Section 8(c) were mandatory. Compare U.S.C. 20507(a)(4)
with (c)(1). Indeed, another consequence this interpretation that Section 8(c)
would become the exclusive means complying with the NVRA, for the simple
reason that other program included the sections connected and
Section 8(a)(4). State laws approach the reasonable effort standard the NVRA countless ways.4 The implications Appellants approach that all these
efforts are invalid under the NVRA. take just one example the inventive way states try comply with the
NVRA, states compare their voter lists with other states order locate voters
who have moved. See Voter List Accuracy, National Conference State
Legislatures (June 16, 2016), https://goo.gl/ihYHSA; see, e.g., ALASKA STAT. ANN.
15.07.195; ALA. CODE 17-4-38.1; CONN. GEN. STAT. ANN. 9-19k; ILL.
COMP. STAT. ANN. 5/1A-45; IND. CODE ANN. 3-7-38.2-5; LA. STAT. ANN. 18:18;
MD. CODE ANN., ELEC. LAW 3-101; NEV. REV. STAT. ANN. 293.675; N.C. GEN.
STAT. ANN. 163-82.14; OHIO REV. CODE ANN. 3503.15; R.I. GEN. LAWS ANN.
17-9.1-34; S.C. CODE ANN. 7-5-186; TENN. CODE ANN. 2-2-140; UTAH CODE
ANN. 20A-2-109; VA. CODE ANN. 24.2-404; WASH. REV. CODE ANN.
29A.08.125; VA. CODE ANN. 3-2-4a.
Case: 17-11315
Date Filed: 07/26/2017 sure, Appellants not claim that Section 8(c) mandatory, let alone
exclusive, but plainly admit instead that permissive and one way States
may comply. Appellants Br. 28. Nor has any court that Appellants cite (or that
amici are aware of) said this. Compare Common Cause, 2017 U.S. Dist. Lexis
93417 *10 (Section 8(c) permissive, not exclusive, meaning states may
permissibly use other trigger methods. Nevertheless, this outcome the
unavoidable, logical consequence Appellants argument that any removal
voters must comply with both 8(c) and (d) because they are connected Section
8(a)(4) the word and. Appellants Br. 28. This fact shows that Appellants
argument untenable. conclusion, neither the two provisions the NVRA cited
Appellants requires that Section 8(d) may only used Section 8(c) used the
same time.
III.
The Legislative History the NVRA, the Federal Government
Enforcement It, and the Implementation the NVRA the
States All Confirm That Failure Vote for Period Time
Can Used Trigger for Sending Confirmation Notices.
Because the plain language the NVRA resolves the issue this case,
not necessary review the legislative history. United States Velez, 586 F.3d
875, 879 n.4 (11th Cir. 2009) (no need address legislative history light our
reading the statute plain meaning and context However, the event that
the Court finds the statute any way ambiguous, otherwise finds helpful,
Case: 17-11315
Date Filed: 07/26/2017
note that the legislative history the NVRA clearly shows that failing vote
permissible basis for sending confirmation notice. surveying the then-current state voter registration practices, the Senate
and House reports accompanying the Act observed:
Almost all states now employ some procedure for updating lists
least once every two years, though practices may vary somewhat from
county county. About one-fifth the states canvass all voters
the list. The rest the states not contact all voters, but instead
target only those who did not vote the most recent election (using
not voting indication that individual might have moved).
these, only handful states simply drop the non-voters from the list
without notice. These states could not continue this practice under
[the NVRA]. Rep. No. 103-6, 46; H.R. Rep. No. 103-9, (emphasis added). The
meaning this passage clear. was only the handful states that drop
non-voters from the list without notice that would have change their practices comply with the new law. But the states identified the immediately preceding
sentence, who target only those who did not vote the most recent election,
were not identified among the states who would have change their
procedures. This means that the authors these reports did not believe that using
the failure vote reason contact voters was proscribed the NVRA.
Subsequent enforcement the NVRA the Department Justice shows
the same basic understanding the statute. 2007, the Department settled
lawsuit had filed against the City Philadelphia under the NVRA and other
Case: 17-11315
Date Filed: 07/26/2017
statutes. See United States City Philadelphia, al., Civil Action No. 06-4592
(E.D. Penn. 2007). the settlement agreement resolving that case, the
Department required Philadelphia send forwardable confirmation notice
any registered elector who has not voted nor appeared vote during any election, contacted the Board any manner and that place voters who not
respond the confirmation notice inactive status. See Common Cause
Kemp, Civ. Action No. 1:16-cv-452-TCB (N.D. Ga. May 23, 2016), ECF No. 22-1 10, 16(5), (6) (agreement attached Defendants exhibit).5 those voters
failed vote the subsequent two federal general elections, Philadelphia was
remove them from the registration list. Id. other words, the Department
commanded Philadelphia what Appellants now say Georgia may not do.
fact, the Department trigger for confirmation notice Philadelphia was
failure vote any election, which stricter standard than Georgia threeyear period.6
The agreement also available the Department website,
https://goo.gl/LzjqtC.
The Department vacillating positions Section the NVRA should
call into question the weight given its statements far this case. See Young United Parcel Service, 135 Ct. 1338, 1352 (2015) (holding that the Court
could not rely significantly agency determination because its position was
contrary inconsistent with previous government statements the issue).
Case: 17-11315
Date Filed: 07/26/2017 significant proportion state governments have reached the same
conclusion. addition Georgia and Ohio, least seventeen other states
consider the failure vote valid reason send notices targeted mailings, place voters inactive lists. ALA. CODE 17-4-9 Any voter who fails vote
for four years his her county shall have his her name placed inactive
voter list ALASKA STAT. ANN. 15.07.130(a)(3) (confirmation notice sent
each voter who has not voted appeared vote the two general elections
immediately preceding FLA. STAT. ANN. 98.065(2)(c) (confirmation requests
may mailed all registered voters who have not voted the last years
HAW. REV. STAT. 11-17(a) (sixty days after every general election, clerks shall
remove the name any registered voter who did not vote the last two general
and primary elections); ILL. COMP. STAT. ANN. 5/4-17 (clerk shall send
every voter who has not voted during the preceding four years notice [of
suspension] through the mails IOWA CODE 48A.28(2)(b) (notice sent each
registered voter whose name was not reported the national change address
program and who has not voted two more consecutive general elections and
has not registered again MASS. GEN. LAWS ANN. ch. 51, 37A (voter not
entered the annual register for consecutive years and who during that time
fails vote any election shall maintained inactive voters list MICH.
COMP. LAWS ANN. 168.509r(6) voter does not vote for consecutive years,
Case: 17-11315
Date Filed: 07/26/2017
the secretary state shall place the registration record that voter the inactive
voter file MO. REV. STAT. 115.181(2) (election officials may choose canvass
only those voters who did not vote the last general election MONT. CODE
ANN. 13-2-220(1)(c) (election administrator shall mail targeted mailing
electors who failed vote the preceding federal general election OKLA. STAT.
ANN. TIT. 26, 4-120.2(A)(6) (address confirmation card sent any active
registered voter who did not vote the second previous general election any
election conducted county election board since the second previous general
election and who has initiated voter registration change PA. CONS. STAT.
ANN. 1901(b)(3) (notice sent any registered elector who has not voted nor
appeared vote during the period beginning five years before the date the
notice and ending the date the notice R.I. GEN. LAWS 17-9.1-27(b)
(notice sent annually every active registered voter who has not voted the past
five (5) calendar years TENN. CODE ANN. 2-2-106(c) (county shall mail
confirmation notice indications exist that the voter may longer reside the
address which the voter registered, such the voters failure vote UTAH
CODE ANN. 20A-2-304.5(3)(a) (clerk sends preaddressed return form voter
who does not vote any election during the period beginning the date any
regular general election and ending the day after the date the next regular
general election VT. STAT. ANN. tit. 17, 2150(d)(2)-(3) (board civil authority
Case: 17-11315
Date Filed: 07/26/2017
may consider and rely upon any checklist checklists showing persons who
voted any election within the last four years basis for sending notice);
VA. CODE ANN. 3-2-25(j) (confirmation notice mailed those who have not
voted any election during the preceding four calendar years These states
correctly perceived that the Congress had delegated them the design
reasonable, general program necessary comply with the NVRA, and that they
had the discretion specify the events that would lead the sending
confirmation notice. Appellants were prevail, these same states would
immediately caught the ensuing flood litigation. sum, using the failure vote trigger for some further step the list
maintenance process was uniformly believed permissible those
Congress who passed the NVRA, those the Department Justice charged
with enforcing the statute, and the states responsible for implementing it.
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Date Filed: 07/26/2017
CONCLUSION
For the foregoing reasons, amici Judicial Watch, Inc. and Allied Educational
Foundation, Inc. respectfully request this Court affirm the decision below and
dismiss Appellants claims.
Dated: July 26, 2017
Respectfully submitted,
Attorneys for Amici Curiae
Case: 17-11315
Date Filed: 07/26/2017
CERTIFICATE COMPLIANCE
Pursuant Federal Rule Appellate Procedure 32(a)(7)(B), hereby
certify that this brief proportionally spaced, 14-point Times New Roman font.
Pursuant Federal Rule Appellate Procedure 29(a)(5) and per Microsoft Word
count, the brief within the amicus word limit 6030 words excluding tables and
certificates, less than half the 13,000 words allowed for the principal brief.
Dated: July 26, 2017 Paul Orfanedes
Case: 17-11315
Date Filed: 07/26/2017
CERTIFICATE SERVICE hereby certify, pursuant Fed. App. 25(d)(2), that electronically
filed the foregoing with the Clerk the United States Court Appeals for the
Eleventh Circuit using the appellate CM/ECF system. certify that the parties
the case are registered CM/ECF users and that service will accomplished the
appellate CM/ECF service.
Dated: July 26, 2017 Paul Orfanedes